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 I II I I I II I I I I 
 
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MINORITY REPORT 
 
 OF THE 
 
 COMMITTEE ON ELECTIONS. 
 
 The undersigned, members of the Committee on Elections, to whom 
 were referred the petition of the Hon. J. P. Johnson, "claiming the 
 seat in the House as the representative from the third district in the 
 State of Arkansas, and asking that he be permitted to contest the seat 
 of the sitting member, Hon. A. H. Garland," differing from the ma- 
 jority of the committee, beg leave to present this minority report. 
 
 At the last session of Congress a majority of the committee recom- 
 mended the adoption of the following resolutions : 
 
 1st. Resolved, That thirty days be allowed the contestant to amend 
 his notice if he so desire. 
 
 2nd. That the sitting member be allowed thirty days after such 
 amendment is made, and notice thereof, or after notice of contestants 
 declining to amend, in which to make and serve his answer thereto 
 on contestant, setting out in said answer the grounds on which he rests 
 the validity of his own, and denies the election of contestant. 
 
 3rd. That after service of the answer or expiration of the time 
 limited therefor, sixty days be allowed the parties to take evidence, 
 which shall be confined to the allegations and denials contained in the 
 answer and notice, and that the same be taken and transmitted to the 
 House under the rules prescribed by the act of Congress of the United 
 States, approved February 19th, 1851, entitled "An Act to prescribe 
 the mode of obtaining evidence in cases of contested elections." 
 
 A minority of the committee also made a report and recommended the 
 adoption of the following resolution : Resolved, That the Hon. J. P. 
 Johnson is duly elected representative from the Third Congressional 
 District of the State of Arkansas, and as such is entitled to the seat 
 in this House as the representative from said third district." This 
 
 resolution was rejected by a vote of in the affirmative, and 
 
 in the negative. 
 
 The House thereupon adopted the resolutions reported by the ma- 
 jority of the committee, which in effect postponed the case for future 
 proof to be taken under certain rules, allowing the parties the privi- 
 lege of amending their pleadings, if they so decided. It will at once 
 be perceived by an examination of the report of the committee that 
 
• [>.> not attempt to decide the question, which at last mu>t control 
 
 the action of the House, namely : 
 
 " Did contestant or the sitting member receives plurality of the 
 
 vote? cast at said election." indeed, the intimation is pretty clear from 
 the whole tenor of the report, in the opinion of the committee, that 
 contestant had been elected, bnt had failed to show it by the highest 
 grade of evidence of which the ease was BUSCeptible and therefore time 
 was granted to obtain the proof. 
 
 Immediately after this action on the part of the House, to-wit : on 
 the 5th of April, the contestant availing himself of the privilege 
 granted him. amended his notice, in which in precise and apt allega- 
 tions he acquaints the sitting member of the grounds relied on for con- 
 testing his seal. A copy of this notice was served on defendant the same 
 day. The sitting member failed or neglected to have a copy of his 
 answer served on the contestant within the time prescribed by the res- 
 olution of the last session, and the notice of the contestant as origi- 
 nally given, and as amended, remain unanswered to this time. No 
 excuse or apology was offered at the last session by the defendant for 
 his failure to answer the original notice, unless it be found in his ob- 
 jection to its sufficiency. 
 
 The objection to this notice was overruled by the committee, and 
 doubtle:s the defendant would have then been given an opportunity of 
 answering had he asked leave to do so. 
 
 The committee, in their report at this session, state that the defend- 
 ant " upon his return to Arkansas prepared his answer now before the 
 committee, a copy of which he sent to the sheriff of Desha county, the 
 residence of Mr. Johnson, with instructions to deliver the same to 
 him. This was not done, and for his failure to do so the sheriff return- 
 ed the paper with the following endorsement: 
 
 " Came to hand April 27th, 1862. 
 
 S. C. Clayton, Sheriff. 
 
 " Not executed on account of Jilson P. Johnson being absent from 
 my county, May 27th, 1862. 
 
 S. C. Clayton. Sheriff." 
 
 The impression left upon the mind from reading this part of the report 
 would be that the contestants absence from his county was the cause 
 of the failure of the defendant to have his answer served, and yet the 
 fact is we have the concurrent written testimony of both contestant 
 and defendant, that the former was at home during the entire time 
 within which the answer was to be served. iSee amended petition of 
 contestant and written statement of facts of defendant. 
 
 What the committee mean in their report by saying the answer of 
 defendant to the amended notice is "now before the committee" we 
 are at a loss to conjecture. If it is meant to say it is or was before the 
 committee in the legal character of a response or answer, we must be 
 permitted to s%y we did not so understand the action of the commit- 
 tee, upon the contrary we understand it as ruled out of the case for 
 all legal purposes, other than as tending to show an effort on the part 
 of defendant to answer in time. 
 

 The amended notice then remains unanswered and by no fault 
 contestant. Indeed, the defendant has not even asked permission to 
 file his answer nunc protunc, but stakes his defence entirely upon the 
 ground that contestant has failed in his proof. 
 
 The question arises what legal effect follows from the failure to an- 
 swer ? The notice and answer constitute the pleadings in this case, 
 under the Act of Congress governing. Why does the law require 
 contestant to give the sitting member notice in writing of his intention 
 to contest the seat? Obviously that defendant may know the ground 
 relied on, so that when he answers he may force an issue to be tried 
 by traversing the allegations of the notice, or may confess them and 
 set up another in avoidance. The whole office of all pleading is to 
 form an issue, to be tried. If the defendant fails to answer, contro- 
 verting the allegations of the contestant, there is no issue to try. 
 
 The well established rule of pleading, universal in its application. 
 is. that all material allegations must be regarded as admitted until 
 denied. The material allegation of the notice is, that contestant re- 
 ceived a plurality of eight votes in the District. It is not denied — 
 must it not be taken to be true ? Does not every rule of pleading 
 known to the books, as well as every rule of logic known to the 
 logician, require it to be regarded as established? If taken as true, 
 what judgement shall the House, acting here as it does in a quasi 
 judicial character, render ? We insist it is compelled to decide against 
 the right of the sitting member to the seat. This consequence must 
 follow, unless every rule of pleading and logic Is set at defiance. In 
 deciding that the sitting member is not legally entitled to the seat, it 
 by no means follows that the contestant is. The judgment that ousts 
 the sitting member is one thing, the judgment that gives the seat to 
 the contestant is essentially a different thing. Each House has the 
 exclusive right of judging of the qualification, election, and virtues 
 of its own members, and therefore, he who claims a seat must not 
 rely upon the weakness of the title of some other claimant, but must 
 show he is entitled to it by affirmative proof. 
 
 In the opinion of the undersigned, the failure to answer the origi- 
 nal and amended notice in this case, must have the effect of depriving 
 the sitting member of his seat, even in the absence of proof, but would 
 not have the effect of giving the seat to the contestant. 
 
 It will be perceived by examination of the notice in this case, that 
 the substantive charge is. that there was a mistake to the prejudice 
 of contestant, in making out the abstract of the vote of Arkansas 
 County by the Clerk, Justice and householder, that was forwarded to 
 the Governor, and upon which he acted in granting the certificate of 
 election, which, when corrected, shows he was elected by eight votes. 
 
 To support this allegation, the contestant offered in evidence, copies 
 of the poll books from each township or voting precinct of Arkansas 
 County, certified by the Clerk of said County under seal of office, to 
 be correct transcripts from the originals, as they remain on file in 
 his office. This evidence was rejected by the Committee, because in 
 their opinion the same was improperly authenticated. 
 
 In support of their view, the House is referred to the Act of Con- 
 
 ol 
 
gresa relating to contested elections, and the Act of March 27. 180 I. 
 re at a loss to see the application of either to the ease before the 
 House. The Act respecting contested elections, is merely cumula- 
 tive, and whilst it prescribes one mode of taking testimony in cases 
 
 of contested elections, does not at all interfere with the well estab- 
 lished rule- <>f evidence as recognised by the common law, or by the 
 statutes of the several States. The statute referred to, as well as the 
 rule laid down by the House at the last session, applies only to the 
 case where an answer has been served in time. Such is the express 
 language of the statute and the resolution of last session. Indeed 
 the statute does not provide for taking testimony where there is no 
 answer, for the obvious reason that in the contemplation of the law 
 makers, no proof in such case would be required, and such we take to 
 have been the sense of this House from the language employed in the 
 resolution of last session. The Act of March 27, 1804, relates ex- 
 clusively to Courts, technically speaking, and provides for procuring 
 and authenticating record evidence of one State to be used in evidence 
 in the Courts oi another or sister State. Now we respectfully sub- 
 mit that this House is not a Court, and especially it is not a Court of 
 one of the States composing this Confederacy. The statutes of 
 Arkansas provide for the introduction as evidence of office copies from 
 the records of one Court in any other Court within the State, when 
 certified by the Clerk under seal of his office. Why shall the evi- 
 dence be digested here? Admit this evidence and the election of the 
 contestant is demonstrated. With conclusive evidence befoi'3 us, that 
 the contestant was elected, we cannot but regard the retention of the 
 seat by the sitting member, as a flagrant disregard of the rights of 
 the electors composing the District, as well as the rights of the con- 
 testant. Whereupon, we recommend the following as a substitute for 
 the resolution of the Committee : 
 
 Resolved, That Hon. Jilson P. Johnson, is duly elected Representa- 
 tive from the Third Congressional District of Arkansas, and as such, 
 is entitled to his seat in this House. 
 
 JNO. W. CROCKETT, 
 JAMES B. DAWKINS, 
 G. G. VEST. 
 
Hollinger Corp. 
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